Scope

Question 1

What are the three ways to establish that the D owes the P a duty with respect to physical harms?

Answer 1

Special Relationship
Enhancement of Risk
Voluntary Assumption of Duty

Question 2

What is a fiduciary special relationship? Include at least 3 examples

Answer 2

Relationships based on dependency and trust, but duty limited to dangers within the relationship where the Defendant is in a superior position of power over plaintiff’s welfare.
Ex:
Common-Carrier and Passenger
Innkeeper-Guest
School-Students
Landlord-Tenant

Question 3

What is the definition for Enhancement of Risk? (HINT 7)

Answer 3

Duty of reasonable care is owed when the conduct creates a risk of physical harm a
Duty can be modified or eliminated by the court based on the circumstances
Applying the doctrine of “knows or has reason to know” that their conduct caused harm, there is a duty of reasonable care owed to prevent further harm.

Question 4

How do you define a duty for Negligent enhancement of risk?

Answer 4

Definition: Negligent conduct increases or creates the risk of harm
Example: Driving 100 mph in a group of 60 mph drivers and crashes where they now owe victim a duty or general public at large

Question 5

How do you define a duty for Non-Negligent enhancement of injury?

Answer 5

Conduct that is innocent but causes injury that in turn creates additional risk.
The injury leaves the victim “helpless and in danger of further harm.”
The standard of care is if the D “knows or has reason to know” that his or her conduct, whether tortious or innocent, caused the harm that left the victim in this situation
the D has a “duty to exercise reasonable care to prevent such further harm.”
Ex. Maldonado v. Southern Pacific Transportation Co.
The defendant railroad was held liable for failing to render aid to the plaintiff. Even though the injuries were not due to the defendant’s negligence.

Question 6

How do you define a duty for Non-Negligent enhancement of risk/creation of risk?

Answer 6

Definitoin: Injury has not occurred, but the conduct creates a continuing risk of harm that is characteristic of said conduct and causes harm at a later time.
Duty: the actor has a duty to exercise reasonable care to prevent or minimize the harm.
Arises: can arise regardless of whether an individual is rendered helpless but if the actor knows or has reason to know whether the conduct has left them at risk and whether they can better mitigate the risk to the vicitm is considered.

Question 7

When is a duty owed under Voluntary Assumption?

Answer 7

Section 44: A duty of reasonable care is owed while an actor is in the act of taking care of another while the other is Imperiled,
Helpless or unable to protect themselves. If the aid is discontinued then the actor must use reasonable care to refrain from putting the other in a worse position than before (accounts for changing circumstances)
Section 324: An actor, being under no duty to do so, takes charge of another who is helpless is liable to the other for any bodily harm caused by Failure to exercise reasonable care to secure safety of dependent person or Left victim in a worse position than prior to assumption of duty.
(outcome based rather than reasonableness, circumstances ignored)

Question 8

Why might the two version of voluntary assumption adopt different approaches? When would the difference matter for an action for injuries sustained as a result of a rescue effort?

Answer 8

They are meant to treat expectations of actors differently
324, deters unqualified people from assuming a duty by relying on the outcome of their care.
44, protects reasonable efforts regardless of the volutneers qualifications
This difference determines the standard used to hold the volunteer liable.

Question 9

Why is there no general duty of rescue, not even a duty of easy rescue at common law?

Answer 9

There is no duty of easy rescue becuase there is no line between easy rescue and self-sacrifice. This would cause unduly harm to people and would trump efficiency. Laslty the act must be volitional + efficient there is no easy duty with both of these conditions met.

Question 10

What is the tort of Negligent Misrepresentation ?

Answer 10

Duty owed to a third party when the information provided by the defendant omits key information, tells half-truths, or generally misrepresents someone that detrimentally physically harms the plaintiff as a result of them reasonably relying on that information.

Question 11

what are the elements of negligent misrepresentation?

Answer 11

Section 311:
Negligently giving false information to another is subject to liability due to reliance on information if harms results
To the other party (like the other school district); or
To such third parties that the actor should reasonably expect to be put in peril
Such negligence may consist of failure to exercise reasonable care
In ascertaining the accuracy of the information
In the manner in which it is communicated

Question 12

What are the Rowland Factors and why are they used?

Answer 12

They are used to identify the scope of duty when there is no special relationship.All factors analyzed to establish whether a duty should be owed.
Factors: CAMPFBD
Closeness btw D’s conduct and injury
Alternative courses of conduct
Moral blame attached to conduct
Policy of preventing future harm
Burden to D & effect on the comm. of imposing duty
Forseeability of harm to P
Degree of certainty that the P suffered injury

Question 13

How does Randi W. court distinguish misrepresentation and non-disclosure?

Answer 13

Misrepresentations are half-truths, vital omissions and misleading character statements that could lead to liability
Non Disclosure is when the act of not reporting or not responding will no lead to liability becuase they are not relaying misleading information

Question 14

How does the court find reliance?

Answer 14

When the information given whether accurate or innaccurate is the foundation for the choices that lead to the physical harm or injury.

Question 15

Why is the decision limited to cases in which third parties suffer physical harm?

Answer 15

It it is rooted in the forseeability of harm to the plaintiff, emotional damages are too difficult to forsee therefore it is bound to physical harm.

Question 16

Why has the Randi W. decision failed to end the problem of “passing the trash” in California?

Answer 16

It has failed to end the problem becuase of the use of “no comment” letters. Rather than schools disclosing accusations and misconduct they would rather avoid the liability all together and state “no comment”

Question 17

When does a psychotherapist owe a duty to a third party based on the special relationship with a patient? (HINT 315, 41)

Answer 17

Section 315: Duty to a third party may arise when there is a special relationship between the defendant and either the party whose conduct needs to be controlled (patient) or the party who is foreseeably endangered as a result (third-party).
Does not require prior coduct between the Defendant and the victim.
Focuses on whether a special relationship exists that imposes a futy on the defendant
If anything there is prior knowledge, a psychiatrist who knows their patient has violent tendencies might have a duty to warn potential victims
Section 41: Actor in a special relationship owes a duty of reasonable care to a third party with regard to risks posed by the other party that arise within the scope of the relationship.
Parents and dependent children, custodians, employer-employee, mental health professionals and patients (Tarasoff).

Question 18

What is the basis for finding that UCLA owed Rosen a duty of reasonable care?

Answer 18

The basis was that she was in a special relationship with UCLA as an enrolled student and that UCLA had assumed a duty to her by undertaking to provide campus security. The basis was not reliant on a third-party obligation to control Thompson but a special relationship obligant to protect Rosen.

Question 19

When can an undertaking give rise to a duty in tort? (HINT 42)

Answer 19

Undertakings can be created by contracts and can arise gratuitously
Equally applicable to those who act altruistically and to those who act non-altruistically
Section 42: An actor who undertakes to render services to another and knows or should know that services will reduce risk of physical harm to other has duty of reasonable care if:
The failure to exercise such care increases the risk of harm than before the undertaking
The person to whom services are rendered or another relies on the exercise of reasonable care

Question 20

When can an undertaking create a duty of reasonable care to a third party? (HINT 43)

Answer 20

Someone who may not have any part in either promising to render service or receive those services but nonetheless harmed as a third party
Section 43: An undertaking can create a duty owed of reasonable care to a third party if:
a. the failure to exercise reasonable care INCREASES the RISK of harm that existed without the undertaking (the failure to use reasonable care made matters worse)
b. the actor has undertaken to perform a duty owed by the other to the third person (a school hires me to keep the entrance clear for students, I assumed the duty of the school and I would owe the students a duty)
c. the person recieving the services rendered relies on the actor to exercise reasonable care.

Question 21

What is the main similarity between Section 42 and 43 given the duty in an undertaking?

Answer 21

Both sections make it clear that tort duties are independent of contractual obligations and can be triggered by gratuitous and contractual undertakings (compensated or gratuitous) the only difference is that section 43(b) includes a subsection in regards to third parties besides that they are the same

Question 22

If a plaintiff is not in privity with the defendant can the defendants contract have any bearing on the defendants duty to the plaintiff in tort?

Answer 22

If the plaintiff was an intended third party then yes. If the plaintiff was an incidental third party then no.
Intended: The whole purpose of the transaction was to confer a benefit on the third-party
can be a member of “defined, limited and known group of people”
must be tantamount to privity to find a duty
Incidental: The transaction could have also benefited this third party but their benefits was not the purpose (object) of the transaction

Question 23

What is the difference between nonfeasance and misfeasance?

Answer 23

nonfeasance is the failure to act when there is no duty to act and cannot be the basis of a torts suit
misfeasance if the failure to act when it was under a duty to act and is an actionable tort

Question 24

What is the focus of contract based scope and how does it effect other liability frameworks?

Answer 24

The focus of contract based scope of duty it to promote effiecient contracting because the courts must be sensitive to policy concerns, particularly the danger of crushing liability. The distributive concerns will trump tort public policy in favor of private contract efficiency. Similar to the “principle and policy” in section 7 that states a court may decide that the ordinary duty of reasonable care requires modification in favor of countervailing principle or policy.

Question 25

What are the differences among the approaches based on
Privity
Tantamount to privity
Third-party beneficiary doctrine
Reasonable foreseeability ?

Answer 25

Privity(Contract): A third party (a person not directly involved in the contract) cannot sue for damages arising from that contract even if they were negatively affected by its performance or lack of. They are only binding to those explicitly wihtin the contract.
Tantamount to privity: when a person is not explicitlty within the contract but experiences the same effects of those bound to the contract.
Third-Party Beneficiary Doctrine: A legal principle that gives a third party the right to enforce a contract if they are an intended beneficiary
Reasonable Foreseeability: Could the defendant reasonably foresee that the third party would rely on their conduct and thus result in the third party’s harm

Question 26

What is the scope of a defendant’s obligation to third parties based on Social host liability? (include underage drinking and diff jdx approaches)

Answer 26

Social Hosts are not usually held liable for third parties when they supply them alcohol (including minors)
Some jurisdicitons hold social hosts liable when the host is over 21 and knowingly providing alcohol to underage minors (exception for parents/guardians/spouses/custodians)

Question 27

Why are social hosts and commercial vendors treated differently?

Answer 27

Social hosts are not usually held liable becuase they have less control over the third party’s consumption of alcohol, less able to absorb/spread losses and they are not expected to limit excessive drinking by community members while these are all within the scope and ability of commercial vendors. (this includes minors)

Question 28

Why does the law distinguish between adult guests and underage minors? (specific to underage drinking)

Answer 28

The law differentiates between adults and minors regarding alcohol consumption in tort law because minors are considered less mature and incapable of making responsible decisions about alcohol, making them more vulnerable to harm from drinking, and therefore placing a greater legal responsibility on those who provide alcohol to them

Question 29

what are the criminal and civil approaches to prevent underage drinking?

Answer 29

TX, WA:
* enacted statutes that impose criminal liability
* required mens rea and actus reus
* a misdemeanor which include fines, jail time, community service
* can become felony due to bodily harm

Other Municipalities
* social host ordinances punishing owners who provide alcohol to minors
* civil, not criminal, provisions
* differ across jurisdictions based on age of host, requirements for violation, magnitude of penalties

Question 30

What is the common law classification of a Trespasser?

Answer 30

People who enter one’s property without privilege, consent, or permission of the property owner. Can occur innocently

Question 31

What is the common law classification of a Licensee?

Answer 31

People who enter the land with permission from the owner or current occupier

Question 32

What is the common law classification of an Invitee?

Answer 32

People who enter the land with permission and the entry onto the property serves teh purposes of the landowner or occupier.

Question 33

What is the common law classification of a Public Invitee?

Answer 33

Those who enter the property in which the purpose is because the land is held open to the general public.

Question 34

What is the common law classification of a Business Invitee?

Answer 34

Those who enter the property for a purpose which is directly or indirectly connected with the business of the owner or occupier. (a financial transaction does not need to take place for a business invitee to make a claim against the owner)

Question 35

What is the classification of a Frequent Trespasser?

Answer 35

Implied consent from the landowner to enter so the trespasser becomes a licensee

Question 36

What is the classification of a Discovered Trespasser?

Answer 36

Trespasser that has been discovered or confronted by the landowner

Question 37

What is the classification of a Child Trespasser?

Answer 37

That led to the current evolution for an attractive nuisance + artificial condition doctrine where there is a duty as a result of the children being unaware of the risks associated with the property.

Question 38

What are the four jurisdicitonal approaches to defining the scope of of a merchant’s duty to protect customers from the criminal acts of third on its premises?

Answer 38

Specifc Harm Rule, Prior Similar Incidents, Totality of the Circumstances, Balancing Test

Question 39

What is the Specific Harm Rule? What are its strengths and weaknesses?

Answer 39

No duty to protect unless the landowner or occupier is aware of specific, imminent harm that is about to occur.
Strengths: protects against overly broad liability, relies only on “actual knowledge”
Weaknesses: very narrow on recovery, very limited duty

Question 40

What is the Prior Similar Incidents test? What are its strengths and weaknesses?

Answer 40

Duty is owed only when the landowner or occupier is on notice of the danger because of a history of previous similar crimes on or near the premises
Strengths: if this is a common tort then this test is favorable
Weaknesses: Highly dependent on fact to fact relevancy and court interpretation

Question 41

What is the Totality of the Circumstance test? Strengths and Weaknesses?

Answer 41

Duty is owed when such criminal acts are reasonably foreseeable based on the totality of the circumstances.
Allows jurors to look at general levels of crime in the areas and property crimes/minor offenses on property.
It is not just similar incidents on or near.
Strengths: Very broad, this is the majority approach, is flexible to relevant factors, case by case analysis
Weaknesses: very subjective with what weight is given to which factors, lacks clear defined standards

Question 42

What is the Balancing Test? Strengths and Weaknesses?

Answer 42

Duty owed after balancing/comparing with the foreseeability of the harm against the burden of providing protection.
Essentially requires clear and obvious similar incidents to overcome burden.
Cost is taken into account
Strengths: economic efficiency, case by case
Weaknesses: policy considerations > duty, lack of clarity

Question 43

What is the Texas Five-Factor test to determine a duty to protect against criminal acts of third parties?

Answer 43

Proximity - Were the prior crimes in a narrow geographical area?
Publicity - Were the prior crimes publicized?
Recency - Did the prior crimes occur in a short time span?
Frequency - Were the prior crimes numerous?
Similarity - Were the prior crimes comparable?

Question 44

Why is the scope of duty to protect against criminal activity narrower than to protect against injury due to the physical condition of the premises?

Answer 44

Because of the difference in foreseeability of the two situations.
It is much more difficult to foresee and prevent criminal acts by third parties than it is to identify and change the physical dangers of a property where it is simple to foresee its risk.

Question 45

What is the duty placed onto Landlords for third party criminal activity? What are the arguments for and against?

Answer 45

Duty of Reasonable Care
For:
* Landlords are in the best position to prevent crimes in common areas and can take appropriate measure
* they can provide some compensation to victims and pass liability costs to tenants
* tenants may have an expectation for care
Against:
* tenant adequately protects themself in contract process
* would be compensation they did not pay for in their lease
* tenants may be okay with less security if costs are less as higher rent drives them out

Question 46

Why is there a right to resist criminal activity?

Answer 46

Merchants have the right to resist criminal behavior as long as the resisting is reasonable to do so
Merchants have this right for the same reasons why there is no easy duty to rescue, there is line between easy rescue and self-sacrifice

Question 47

Why has interspousal immunity largely disappeared while parental immunity persists?

Answer 47

The immunity began to disappear as women obtained rights to manage their own property,make contract and sue
The image of complete marital unity was gradually undone especially after spouses were permitted to sue one another for negligence as well which showed the abuse and horrors marriage could have.
Parental immunity still exists because if an acts falls within the scope of parent-child relationship, parents typically enjoy immunity for negligent harms inflicted on their children

Question 48

What are the historical justifications for parental immunity?

Answer 48

The historical justification for parental immunity relate to concerns about state disruptions into family life
Family harmony
Family privacy
Family autonomy family fiscal integrity
Dangers of fraud and collusion
The possibility that a parent might benefit in rare circumstances from a child’s judgment

Question 49

When do acts fall outside the scope of the parent-child relationship so that parental immunity does not apply?

Answer 49

Outside of Scope: (family fiscal integrity) outside of parental role and within the scope of employment, (family harmony) intentional torts, (family harmony) Willful, wanton or reckless acts
Not a legally Recognized Parent: (Family Privacy, Autonomy, Integrity) Third-party liability, non-parent acting in loco parentis
Relationship has ended: (Family Harmony, Privacy, Autonomy) Emancipated children, parent or child is deceased

Question 50

What are the different jurisdictional rules regarding parental immunity?

Answer 50

Complete Immunity (MY): A parent owes no duty to refrain from negligent acts related to raising a child, unusual approach today
Limited Privilege (NY, TX): parent enjoys blanket immunity for negligent acts related to
The provision of necessaries
An exercise of parental authority
NY includes negligent supervision within this category
Reasonable Parent (CA, AZ): A parent is held to the standard of a reasonable parent rather than a reasonable person, allowances can be made for the demands asked to parents
Must be clearly unreasonable in the actions taken
based on circumstances
Availability of Insurance (FL): A parent’s immunity is abrogated to the extent that insurance is available to compensate the child

Question 51

Did the AZ Supreme Court make the right decision in shifting from a limited privilege to a reasonable parent standard? What are the pros and cons of this change?

Answer 51

Since there were issues in distinguishing which acts enjoyed a limited privilege and which did not and it was unreasonable to make a brightline rule to state that liability only exists where insurance exists then the shift to a reasonable parent standard.
Pros: allowances for the comprehensive demands made on parents and their prerogative to make decisions about their children’s upbringing.
Cons: not everyone will agree with what is “palpably unreasonable” treatment of their child.

Question 52

What is the doctrine of actual and constructive notice?

Answer 52

Actual: D was directly warned of the fault or issue and did not address it leading to negligence and liability (e.g. an employee sees a spill on the floor or a customer informs staff about it, or Bethel)
Constructive: Non-direct evidence that points to the fact that the defendant should have been aware and fixed the issue (relies on inferences from the circumstances such as the amount of time the condition existed or Negri)

Question 53

what is the “business practice” rule?

Answer 53

A P need not establish actual or constructive notice when there is a continuous and foreseeable risk to attend to for a self-service operation
Duty to take those reasonable steps to reduce continuous risks

Question 54

What is the Texas Approach for charitable organizations and their immunity?

Answer 54

Immunized volunteers whose acts result in death, damage or injury (not car accidents)
The act limits liability for employees and the organizations
Not applied to intentional, willfully negligent acts or conscious indifference or disregard

Question 55

What is the historical background for governmental liability?

Answer 55

total immunity from liability “the King can do no wrong”
as the gov took on an increasingly important role in providing services they were more likley to inflict injury
Therefore the governmnet immunity was abrogated in whole or in part so that the individuals who suffered harm could be compensated.

Question 56

When faced with governmental immunity what are the key considerations to ask?

Answer 56

1.Local, state, or federal officials acting within the scope of employment? (ask VL q’s)
2.If so, does the defendant owe a duty to the plaintiff under common law or a statute?
* is there a private right of action under a statute?
* is the act immune from liability under the common law?
3.What kind of activity is the official engaged in doing? (Governmental v. Proprietary)
4.What kind of decision is the official making? (Discretionary v. Ministerial)
5. Assuming that the act is not immune from liability is a duty otherwise owed under common law?

Question 57

what’s the difference between governmental and propietary activities?

Answer 57

Governmental: when there is no private analog, ex. fire fighters
safety from external hazards (police)
Public service/good available to all (road, highways)
Proprietary: Private analog for someone to choose from so no imunity. (private ambulances)

Question 58

What is the difference between a discretionary and ministerial decision?

Answer 58

Discretionary: policy judgment (societal, economic, political) possible immunity
Ministerial: No policy judgement, no immunity and must determine the duty that is owed

Question 59

What are the tests for municipal liability for police officers and 911 cases?

Answer 59

Schuester approach
Cuffy approach
Texas approach

Question 60

what is the schuester approach?

Answer 60

1. Promise of protection, implicit or explicit, made to the victim or made aware to the victim.
2. Justifiable, detrimental reliance on the promise
   Note: Victim must have directly been made aware of the promise and consequently rely → cannot confer promise from a third party

Question 61

What is the Cuffy Approach?

Answer 61

1. Voluntary assumption of a duty by the municipality through promises or action
2. Knowledge on the part of the municipality’s agents that inaction could cause harm
3. Direct contact between the municipality’s agents and the victim
4. Justifiable reliance by the victim on the municipality’s undertaking

Question 62

What is the Texas Approach for government official liability?

Answer 62

• Immunizes government officials from liability based on “the failure to provide or the method of providing police or fire protection.” Section 101.055 (3).
• When state employees are “responding to an emergency call or reacting to an emergency situation,” they are liable only if they act “with conscious indifference or reckless disregard.” Section 101.055 (2).
• No government liability for “providing 9-1-1 service or responding to a 9-1-1 emergency call” unless “the action violates a statute or ordinance applicable to the action.

Question 63

If the act is ministerial what steps do you take to determine whether a duty is owed?

Answer 63

Was there a special relationship?
Was there an enhancement of risk?
Was there a voluntary assumption of duty?
If not, then is there a statute that could provide a private right of action?

Question 64

What are the procedural requirements of the Federal Torts Claims Act?

Answer 64

Federal district courts shall have exclusive jurisdiction of civil action claims againt the U.S. for physical harm caused by negligence of a Government employee while they were acting within the scope of their employment…
Tried in front of a federal judge due to supremacy of federal government

Question 65

Under the Federal Torts claim ask what questions need to be answered to determine if the government has abrogated its immunity from tort? (substantive provisions)

Answer 65

Was a federal official acting within the scope of employment?
If so, what kind of activity was that official doing?
If there is no activity-based immunity, what is the official’s alleged culpability?
If the activity is not immune, what is the nature of the act that the official allegedly was performing negligently?

Question 66

What are the activity-based exemptions?

Answer 66

Military - Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war” (Very controversial)
Expanded under Feres to be any active duty member, not just war
Way to preserve discipline and authority
Exception: Medical malpractice cases for administrative claim against military physician
Treasury - “Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.”
Postal Office - “Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”

Question 67

What kinds of culpability can be the basis for exempting the federal government from liability?

Answer 67

Activity-Based Immunity
Nature of the Act Immunity:
Intentional acts (conducted outside the scope of work) with the exception of some law enforcement activities
Immune from Strict Liability claims
Discretionary Based Act Immunity:
Immunity for some acts that are “discretionary” rather than “operational”

Question 68

what is the two part test to determine whether the discretionary function exemption applies?

Answer 68

1. Did any “federal statute, regulation or policy specifically prescribe a course of action for the employee to follow”?
   * If not, the employee has a choice and there is possible immunity.
   * search every 3rd car (prescribing action) spot check using experience (not prescribing)
2. If the employee has a choice, is it “of the nature and quality that Congress intended to shield from tort liability”?
   * The choice must be “susceptible to policy judgment” and implicate “political, social, [or] economic judgment.”
3. Exceptions that are not policy choices include aesthetic choices, engineering choices, budgetary constrains are not sufficient on their own

Question 69

What is the difference between direct infliction of emotional distress and indirect infliction of emotional distress?

Answer 69

Direct: The plaintiff suffers emotional harm as a direct result of the defendant’s negligent act
Underlying physical injury
Indirect: The plaintiff suffers emotional harm at witnessing death or serious bodily injury to another
Usually the defendants negligence is the cause of serious bodily injury or death of a close relation (bystander recovery)
underlying mental state of the defendant

Question 70

Where did the tests for direct infliction of pure emotional distress evolve from?

Answer 70

Parasitic recovery: The emotional harm piggybacked on the underlying physical injury
Intentional infliciton of emotional distress: no physical injury but suffered pure emotional distress
The D intended to cause the victim emotional harm

Question 71

What are the different tests for determining whether a defendant owes the plaintiff a duty to refrain from negligently inflicting pure emotional distress?

Answer 71

Impact Rule
Zone of Danger
Special Circumstances
CA1 Approach
CA 2 Approach
Physical Manifestation add on for all of them but SC
Reasonable person test

Question 72

What is the impact rule test?

Answer 72

Was there physical touching?
was there severe emotional distress as a result?

Question 73

what is the zone of danger test (direct)?

Answer 73

an actual risk of serious bodily injury or death
objectively reasonable fear of death or serious bodily injury
Subjective fear of death or serious bodily injury
Severe emotional distress as a result

Question 74

what is the zone of danger test (indirect)?

Answer 74

all of the requirements for the direct zone of danger test + demonstrate that while reasonably and objectively fearing for their own safety they witnessed a death or serious bodily injury to a loved one

Question 75

What is “special circumstances”?

Answer 75

does not require you of being in physical danger of getting hurt
allows a plaintiff to recover for negligent handling of a corpse or a notice of regarding death
the notice or handling is so offensive it seems intentional although it is not

Question 76

What is the expaded version of the “special circumstances” test?

Answer 76

Rest (3d) §47
allows recovery when the emotional harm arises due to specified categories of activities, undertakings, or relationships in which negligent conduct is especially likley to cause serious emotional harm
can include negligent diagnosis of a dreaded or serious disease,lose of a fetus, a hospital to lose an infant, injures a fetus, exposure to HIV, mistreatment of an employee, mental abuse by a spouse

Question 77

What are the two special CA approaches for direct?

Answer 77

CA 1: the victim still has not developed any sympotms or any disease BUT if the D’s negligence led to plaintiff to be expose to “a toxic substance that threatens cancer” and “P’s fear stems from a knowledge corrobated by scientific opinion, that it is more likley than not that the plaintiff will develop cancer in the future due to the toxic exposure”
NOTE: this is a very difficult standard to meet, in most cases the elevation of the risk does not lead to it being more likely than not that you will get cancer
To tecover the P had to show that the fear was serious
CA 2: You do not need to show that the risk is more probable than not that you will get sick. You only have to show a serious elevation of that risk
the P must also show that the D acted with “fraud, oppression, or malice”
This means an intent to injure, willful or concsious disregard of the P’s rights or safety, or intentional misrepresentation or concealment of a material fact.

Question 78

What is the physical manifestation add-on?

Answer 78

As a result of all of the test (except special circumstances) you subsequently develop some kind of serious bodily harm
not uniformly demanded in all jurisdictions but is the key to Texas approach

Question 79

What is the reasonable person test (Direct and indirect)?

Answer 79

Would a reasonable person in the P’s position suffer emotional distress?
Greatly broadens scope of duty and allows p’s to bring many more direct actions for negligent infliction of pure emotional distress.
No longer matters whether there is a risk of physical harm
may require a physical manifestation add-on

Question 80

What are the perceived dangers of simply relying on the reasonable foreseeability of emotional distress to define the scope of duty?

Answer 80

It broadens the scope of liability which creates the risk of unbounded liability for Ds, over-deterrence. The application of the law can be inconsistent depending on what a jury finds to be reasonable.

Question 81

why has there been a trend to expand the scope of duty in, direct emotional harm?

Answer 81

expansion to put direct emotional harm on the same level as physical harm. The reasonable person standard provides relief to those who experience emotional distress without any physical injury which brings the value of emotional distess equal to the value of physical injuries creating an overall more empathetic standard

Question 82

How do courts use the distinction between direct and indirect infliction of emotional distress to limit liability?

Answer 82

The underlying differences effect liability.
DIED relies on an underlying physical manifestation (for the most part) as a gatekeeping mechanism.
IIED relies on the mental state but it must be both predictable and significant.
By distinguishing between direct and indirect, they apply stricter requirements to the latter to strike a balance between compensating genuine harm and avoiding overly expansive liability

Question 83

How does the use of this distinction between direct and indirect relate to the allocation of responsibility for absorbing emotional losses?

Answer 83

the responsibility is lessened for the D becuase not all emotional losses can or should be compensated for indirect and direct. Emotional distress is an unavoidable part of life and courts are reluctant to make defendants the default absorbers of all such losses. Courts effectively allocate responsibility for some emotional harms back to society of the individual.

Question 84

How does the scope of duty in actions for negligent infliction of emotional distress reflect our views about which relationships are significant and worthy of protection?

Answer 84

The courts make normative judgements about which relationships are significant.
Courts uniformly reject emotional distress claims based on property loss, concluding that people should not become unduly attached to property.
Courts focus on marital and intimate family relationships . Some courts say only formally recognized relationships count (no cohabitating couples)

Question 85

What are the tests for establishing the scope of duty for indirect infliction of emotional distress?

Answer 85

Zone of Danger
Dillon/Portee
Reasonable Person

Question 86

What is the Dillon/Portee test? (add the modifications)

Answer 86

-At the scene (some jdx’s accept when bystander arrives shortly after the accident happens so the observation is not contemporaneous)
-Sensory and Contemporaneous observation (some jdx accept a virtual presence)
-Close family member
-the family member died or suffered serious physical injury
-severe emotional distress

Question 87

How do the damages for direct and indirect infliction of emotional distress differ?

Answer 87

DIED:
Pecuniary: would inlcude the medical expenses of getting treatment for physical harm, lost wages
Non-Pecuniary: suffering
IIED:
Pecuniary: any medical expenses or lost wages associated with the distress he/she experienced at witnessing family members harm. Could recover pecuniary costs associated with general grief
Non-Pecuniary: could recover for suffering at witnessing the harm. Can only be in relation to the witnessing of the harm, cannot be combined with grief or fear

Question 88

What is an action for loss of consortium? What damages can be recovered in these actions?

Answer 88

Allows Ps to recover for emotional harms to specified family relationships.
Specifically for the deprivation of affection, companionship and assistance that one family member is entitled to receive from another.
Relies on significant physical injuries, emotional injuries alone are generally insufficient but a few jdx’s recognized psychological harms
spousal: universally recognized
parent-child: 20 jdx’s recognize a loss of consortium based on injury to a minor child, fewer recognize a minor child’s action for loss of consortium based on injury to a parent
Damages
Pecuniary would relate to the loss of services
Non-pecuniary would relate to the loss of intimacy and companionship (includes a sexual component)

Question 89

Why do courts more readily acknowledge spousal actions than actions by parents or children for loss of consortium? Why is there now a trend to recognize parent-child actions?

Answer 89

Loss of consortium is heavily based in traditional marital duties to a family and the idea that a spouse is uniquely entitled to the companionship, affection, sexual relations and support of the other spouse
They are beginning to recognize the deep emotional bonds between parent and child as well as the evolving expansion of roles a child may provide a family

Question 90

Does the law of emotional distress reflect gender-based differences? Why or why not?

Answer 90

Gender stereotypes no longer influence the doctrine of emotional distress since none of the tests rely on the gender of the parties involved. Loss of consortium is also stepping away from gender norms as it allows women to file on behalf of their husbands.